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A-175-80
Minister of Indian Affairs and Northern Develop ment (Applicant)
v.
Sean Gerald Ranville and Danielle Winona Ran - ville (Respondents)
Court of Appeal, Heald and Urie JJ. and Kelly D.J.—Toronto, June 5, 1980.
Judicial review — Jurisdiction — Application to review and set aside decision of a County Court Judge — Whether Judge acting under s. 9(4) of the Indian Act is acting in an appellate capacity or as persona designata — Application dismissed — Indian Act, R.S.C. 1970, c. I-6, as amended, s. 9(4) — Inquiries Act, R.S.C. 1970, c. I-13 — Federal Court Act, R.S.C. 1970 (2nd Supp.). c. 10, s. 28.
Herman v. The Deputy Attorney General of Canada [1979] 1 S.C.R. 729, followed. Minister of National Revenue v. Coopers and Lybrand [1979] 1 S.C.R. 495, applied.
APPLICATION for judicial review. COUNSEL:
I. S. MacGregor for applicant. W. T. Badcock for respondents.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
William T. Badcock, Ottawa, for respond ents.
The following are the reasons for judgment of the Court rendered in English by
HEALD J.: We are all of the opinion that this Court does not have jurisdiction to entertain this application to review and set aside the decision of His Honour Judge J. Drew Hudson, a County Court Judge for the Judicial District of York, in this matter. The decisions of the Supreme Court of Canada in Herman v. The Deputy Attorney Gen eral of Canada [1979] 1 S.C.R. 729 and in The Minister of National Revenue v. Coopers and Lybrand [1979] 1 S.C.R. 495 have imposed an obligation on a party alleging that a Judge is acting pursuant to a statutory provision in the special capacity of persona designata of finding in the statute specific provisions that such is the case
(see the Herman case, supra—per Dickson J. at pages 748-750 and Laskin C.J. at pages 735-736).
Subsection 9(4) of the Indian Act, R.S.C. 1970, c. I-6, as amended, reads as follows: "The judge of the Supreme Court, Superior Court, Court of Queen's Bench, county or district court, as the case may be, shall inquire into the correctness of the Registrar's decision, and for such purposes may exercise all the powers of a commissioner under Part I of the Inquiries Act; the judge shall decide whether the person in respect of whom the protest was made is, in accordance with this Act, entitled or not entitled, as the case may be, to have his name included in the Indian Register, and the decision of the judge is final and conclusive." Clearly the words "... shall inquire into the cor rectness of the Registrar's decision ..." import that the judge of the Supreme, Superior, Court of Queen's Bench, or county or district court is acting in an appellate capacity. Contrary to what was said by counsel for the applicant, the fact that the Judge is empowered to exercise all of the powers of a commissioner under Part I of the Inquiries Act, R.S.C. 1970, c. I-13, is not the kind of specific provision indicating that he is acting persona designata envisaged by the Supreme Court of Canada in the Herman case supra. Rather, in our opinion, it clothes him with powers which he may not normally have sitting as a Judge in appeal, presumably to ensure that the decision which he is reviewing has been correctly decided.
Accordingly and for these reasons the section 28 application is dismissed.
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